employers’ response to the coronavirus€¦ · ─osha’s personal protective equipment (ppe)...
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© 2020 Eversheds Sutherland (US) LLP
Employers’ Response to the Coronavirus
March 2020Marlene WilliamsMichael Woodson
Eversheds Sutherland (US) LLP
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Overview
─ Occupational Safety and Health Act (OSHA)
─ Family Medical Leave Act (FMLA)
─ Americans with Disabilities Act (ADA)
─ Fair Labor Standards Act (FLSA)
─ National Labor Relations Act (NLRA)
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Key Websites
─ DOL OSHA Standards
─ OSHA Fact Sheet, Protecting Workers During a Pandemic
─ Centers for Disease Control and Prevention
─ World Health Organization
─ US Travel Advisory Regarding Travel
─ EEOC Pandemic Guidance
─ CDC Print Resources
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OSHA
While there are no specific OSHA standards regarding coronavirus, OSHA has highlighted requirements already in place, specifically:
─ OSHA’s Personal Protective Equipment (PPE) standards, which require using gloves, eye and face protection, and respiratory protection.
─ The General Duty Clause, which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
─ Work-related illnesses that meet certain criteria must be recorded on an employer’s OSHA 300 Log and an OSHA 301 Injury and Illness Incident Report (or their equivalents).
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OSHA—Basic PrecautionsEmployees should:
─ Stay home if they are sick.
─ Regularly wash their hands with soap and water or use hand sanitizer.
─ Avoid touching their noses, mouths, and eyes.
─ Cover their coughs and sneezes with a tissue or their arm.
─ Wash their hands or use hand sanitizer after coughing, sneezing, blowing their noses, or coming into contact with others.
─ Avoid close contact with coworkers and customers by keeping a distance of at least six feet.
─ Avoid shaking hands.
─ Refrain from using other employees’ phones, desks, tools, equipment, or work stations.
─ Lead a healthy lifestyle, including good nutrition, exercise, and smoking cessation, to maintain a better immune system.
─ Avoid face-to-face meetings in favor of video or teleconferencing.
─ Hold meetings in large, well-ventilated areas where employees can maintain a distance of at least six feet from each other.
─ Keep unnecessary visitors, family members, and other members of the general public from visiting the workplace.
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OSHA—Knowledge
─ Differences between seasonal epidemics and worldwide pandemic disease outbreaks;
─ Which job activities may put them at risk for exposure to sources of infection;
─ What options may be available for working remotely, or utilizing an employer’s flexible leave policy when they are sick;
─ Social distancing strategies, including avoiding close physical contact (e.g., shaking hands) and large gatherings of people;
─ Good hygiene and appropriate disinfection procedures;
─ What personal protective equipment (PPE) is available, and how to wear, use, clean and store it properly;
─ What medical services (e.g., vaccination, postexposure medication) may be available to them; and
─ How supervisors will provide updated pandemic-related communications, and where to direct their questions.
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OSHA—Recording
─ Recording and reporting occupational injuries and illness (29 C.F.R. Part 1904).
─ No duty to record the common cold and flu.
─ However, 2019-nCoV is a recordable illness when a worker is infected on the job.
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OSHA—Other Relevant Standards
─ Sanitation (29 C.F.R. § 1910.141).
─ Access to employee exposure and medical records (29 C.F.R. § 1910.1020).
─ Hazard communication (29 C.F.R. §1910.1200).
─ Occupational exposure to hazardous chemicals in laboratories (29 C.F.R. § 1910.1450).
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FMLA
─ The flu and common cold do not typically qualify as serious health conditions under the FMLA.
─ A pandemic virus also does not automatically qualify as a serious health condition under the FMLA.• Inpatient care or continuing treatment by a health care
provider.
─ However, complications from the illness that lead to hospitalization or incapacitation can be a serious health condition.
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FMLA—Fitness For Duty
Employers may require an employee who has been out sick to satisfy any of the following before returning to work:
─ Provide a doctor’s note clearing the employee to return to the workplace.
─ Submit to a medical examination.
─ Remain symptom-free for a specific period of time before returning to work.
Employers must apply uniform standards to all similarly-situated employees
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ADA
─ The flu and common cold are not typically considered disabilities under the ADA.
─ However, complications related to the flu may qualify.
─ The ADA prohibits disability-related inquiries or medical examinations of current employees, unless the employer reasonably and objectively believes the medical condition impairs the employees’ ability to perform the job functions and poses a direct threat to the workforce.
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ADA—Dos and Don’ts
DON’T
─ Employers may not ask employees to disclose health conditions to anticipate potential absenteeism.
─ Employers may not ask employees who are not sick and show no symptoms to disclose whether they have a medical condition that would make them susceptible to a pandemic.
DO
─ Employers may ask questions that are not disability-related, such as questions pertaining to public transportation.
─ Employers may ask employees if they have influenza symptoms, such as fever or chills and a cough or sore throat.
─ Employers may send employees home who become ill or may require employees to stay home.
─ If applicable, promote telecommute or flexible schedules.
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ADA—Medical Privacy
─ An employer has a duty to protect an employee’s medical information.
─ An employer can only disclose this confidential medical information to a limited group: Supervisors, Safety Personnel, Government Officials.
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FLSA
─ Non-Exempt Employees:Employers do not need to pay non-exempt employees who miss work. • Try to be flexible, though.
─ Exempt Employees receive their full salary for any week in which they work, regardless of the number of days or hours worked. • Employers do not have to pay an
exempt employee for any workweek in which no work is performed.
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FLSA—Deductions
Improper deduction to an exempt employee’s salary could lead to a loss of the exemption status under the FLSA.
─ Proper Deductions• An employee misses work because of illness or disability and the
employer has a bona fide sick leave policy, plan, or practice of providing compensation for salary loss caused by illness or disability.
• An employee misses work due to personal reasons.• FMLA Leave.
─ Improper Deductions• No bona fide sick leave policy.• Employer initiates the absence.
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NLRA
─ Employees are protected in engaging in concerted activity of refusal to work based on concerns about safety and health.
─ Under the NLRA, there is no requirement that the employee have a reasonable belief that a situation is unsafe to refuse to work. All that is required is a good faith belief, supported by ascertainable and objective evidence, that the working conditions are abnormally dangerous.
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Marlene [email protected]+1.713.470.6143